Citizens' Bank v. Carson

Bates, Judge, delivered the opinion of the court. This suit is brought upon a bill of exchange drawn byOrth & Bro. upon Carson, who accepted it, but failed to pay at maturity, and it was duly protested. . After the dishonor of the bill, Orth & Bro., the drawers of it, made an arrangement with the plaintiff, which was the holder of it, whereby the drawers gave their note to the plaintiff for the amount of the bill, the plaintiff still retaining the bill. The note was not paid. The court below, upon the trial, instructed that if the note was given and accepted in satisfaction of the bill, the defendant was thereby discharged; but if the arrangement was not.in satisfaction of the note, the defendant was not discharged thereby. The plaintiff was the banker of Orth & Bro. During the trial the defendant offered in evidence the bank account of Orth & Bro. with the plaintiff, to show that after the bill matured and the note was given, Orth had. balances on deposit with the plaintiff equal to the amount of the bill. This testimony was rejected, to which the defendant excepted. We see no error in the action of the Circuit Court. The defendant was primarily liable upon the bill, and unless the plaintiff accepted Orth & Bro.’s note as an extinguishment of the bill, his liability is not discharged. It plainly appears from the testimony that there was no intention to discharge the defendant, and the acceptance of the note had not (against the intention of the parties) that legal effect. The bank account offered in evidence was properly excluded. The plaintiff was not bound, even if it had the right, to apply a balance of current account to the payment of a liability fixed by bill or note, and it is only upon the opposite supposition that the account was relevant evidence. Judgment affirmed. Judges Bay and Dryden concur.